Citation Nr: 21013292 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 09-36 577 DATE: March 9, 2021 ORDER Entitlement to an effective date earlier than February 11, 2004 for the award of a total disability rating based on individual unemployability due to service-connected disorders (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that service-connected disabilities prevented the Veteran from securing and following a substantially gainful occupation prior to February 11, 2004. CONCLUSION OF LAW The criteria for a total disability rating for individual unemployability due to service-connected disorders (TDIU) for the period prior to February 11, 2004 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to October 1969. This matter initially came to the Board from a December 2006 decision issued by the Agency of Original Jurisdiction (AOJ), which granted service connection for tinea pedis and onychomycosis of the feet, with an initial disability rating of zero percent and an effective date of February 11, 2004. The issue of TDIU became part of the case when, during the appeal of the denial of the increased rating, the Veteran contended that service-connected disabilities prevented him from working. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In April 2017, the Board granted a TDIU rating, effective February 11, 2004. The Veteran appealed the April 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). In October 2018, the Court issued a memorandum decision, vacating the Board’s denial of an effective date for TDIU earlier than February 11, 2004 and returning that issue to the Board. To remedy the errors identified by the Court, the Board remanded this matter to the AOJ in June 2019. In its remand orders, the Board instructed the AOJ to attempt to obtain potentially relevant treatment records from four physicians in private practice previously identified by the Veteran. The Board also instructed the AOJ to obtain a retrospective medical opinion concerning the Veteran’s ability to work prior to February 11, 2004. Because the AOJ was initially unsuccessful in substantially complying with these instructions, the Board remanded the case again in June 2020. TDIU prior to February 11, 2004 VA will grant a total disability rating when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing or following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment is not considered substantially gainful employment. Marginal employment exists when the Veteran’s earned annual income is below the poverty threshold and in other limited circumstances. Id. Although he currently has a total 100 percent combined disability rating, before February 11, 2004, he had six service-connected disabilities: (1) chronic headaches (30 percent disabling); (2) bilateral hearing loss (20 percent disabling); (3) type II diabetes mellitus (20 percent disabling); (4) tinnitus (10 percent); (5) residuals of an in-service fracture of the left nasal bones (10 percent); and (6) a scar associated with residuals of in-service left nasal fracture (zero percent disabling). Before February 11, 2004, he had a combined disability rating of 60 percent. Between February 11, 2004 and January 5, 2010, the Veteran continued to receive compensation for the six previously mentioned disabilities with the same percentage ratings. In addition to these, he was also awarded a 20 percent rating for retinopathy of the eyes, granted as a secondary result of his service-connected diabetes mellitus, type II and a noncompensable rating for tinea pedis and onychomycosis of the feet, also associated with diabetes. During this period, his combined disability rating was 70 percent, satisfying the schedular TDIU criteria under 38 C.F.R. § 4.16(a). For the period between January 5, 2010 and April 20, 2016, the Veteran continued to receive compensation for the eight disabilities previously mentioned with the same percentage ratings. In addition to these, he was awarded four separate ratings for peripheral neuropathy – for the left and right upper extremities and the left and right lower extremities. Effective January 5, 2010, he received a 30 percent rating for the right (dominant) upper extremity, a 20 percent rating for the left upper extremity, and ratings of 20 percent, respectively, for the left and right lower extremities. During this period, he had a 90 percent combined rating. Still more benefits were granted since, but the disabilities listed above are the most significant to the Veteran’s arguments for an earlier effective date for his TDIU rating. Although he did not meet the schedular criteria of 38 C.F.R. § 4.16(a) until February 11, 2004, subsection (b) of the regulation provides that it is VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. But when the claimant does not meet the schedular criteria of subsection (a), the Board must first forward the case to the Director of the Compensation Service for extraschedular consideration. Although the Board has jurisdiction to review the Director’s refusal to assign an extraschedular rating, see Wages v. McDonald, 27 Vet. App. 233, 236 (2015); Kuppamala v. McDonald, 27 Vet. App. 447, 456 (2015), it lacks the power to award a TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). After both the Board’s April 2017 decision and the Court’s October 2018 memorandum decision, the Court issued a precedential decision holding that the effective date of an award of TDIU cannot be earlier than the effective date of the award of service connection for the disability or disabilities on which the award of TDIU is based. See Delrio v. Wilkie, 32 Vet. App. 232, 236 (2019). This means that, for this Veteran to be eligible for a TDIU before February 11, 2004, the evidence must show that disabilities with effective dates of service-connected compensation prior to February 11, 2004 prevented him from securing or following substantially gainful employment at the relevant time. Factual Background In his written application for TDIU, the Veteran identified his most recent employer as the U.S. Postal Service, where he worked between 1977 and May 2003. According to the application, May 2003 was also the date the Veteran’s disability first affected full-time employment, the date he last worked full-time, and the date he became too disabled to work. On the part of the application form asking the Veteran what disabilities prevented him from working, he indicated hearing loss, poor vision, and “diabetes – neuropathy.” To support his TDIU claim, the Veteran also submitted a report from a vocational consultant, dated August 2016. The report includes a summary of about thirty separate medical progress notes or treatment records between December 1995 and April 2014, only three of which are before February 11, 2004. The consultant described an interview with the Veteran about his education and employment history and his functional abilities, both at the time of the interview and during the period before his retirement from the Postal Service in 2004. The Veteran’s job at the Post Office was maintenance worker and his duties included painting bar codes on facility machinery. According to the consultant, “He would spray the numbers on columns and lines on the floor of the facility. [The Veteran] would have to operate a forklift to move materials around the facility. He performed this job for 30 years until he was forced to retire in 2002 due to his service-connected disabilities.” The Veteran told the consultant that he last worked in 2002 but did not actually retire until 2004. According to the report, he stopped working on the advice of his physician, Dr. D.G. The record includes a letter from the Office of Personnel Management confirming that he retired from the Postal Service in October 2004. The consultant summarized some of the earlier VA medical opinions on the issue of how the Veteran’s various disabilities affected his work. For the purpose of brevity, the Board will not summarize all of these opinions in detail. They each focus on the effects of the particular disability under examination as opposed ot the Veteran’s overall ability to work. Some of the VA opinions suggested that, due to his peripheral neuropathy, the Veteran should not perform strenuous physical work and that, because of his eye condition, he should not drive or operate machinery. One of the VA examiners quoted in the August 2016 vocational consultant’s report suggested that the Veteran could perform sedentary work. But the consultant disagreed. Even sedentary work, the consultant explained, would require him “to be able to use his upper extremities at least on a frequent basis and given his diabetic peripheral neuropathy and use of a cane, [the Veteran] would not be able to perform the handling and fingering required in sedentary work. He also would not be able to maintain the prolonged sitting required for sedentary work given the peripheral neuropathy present in his lower extremities.” In 2002, the Veteran told the consultant, he was able to sit for between one and one and a half hours. The vocational consultant argued that, “Given how his diabetic retinopathy and how it affects his vision, he could not perform unskilled sedentary occupations. Most unskilled sedentary occupations require frequent near acuity and [the Veteran] is limited in his ability to perform visual activities. . .” In the consultant’s opinion, “service-connected diabetes mellitus and secondary conditions have rendered him unemployable since 2002 and up to the present time.” Contemporaneous medical records are consistent with the consultant’s statements about neuropathy and vision problems. According to an October 2003 letter from a physician who treated the Veteran’s eye problems, “He states he has had progressive loss of vision over several years but more over the last two years with no sudden loss of vision.” And his endocrinologist, who seems to have mostly treated the Veteran’s diabetes and associated complications, described weakness in the fingers and arms as well as leg pain in his notes prior to February 11, 2004. But the consultant’s suggestion that headaches would prevent the Veteran from concentrating on his work are more doubtful. According to a January 1996 examination report, the Veteran said that his headaches were relieved by over-the-counter medications. Another report, dated November 1999, indicates the Veteran had three or four headaches per week, which were treated with Tylenol. He did not experience photophobia, nausea, or visual symptoms. After the Court vacated the Board’s April 2017 denial of TDIU, the Board remanded the case with instructions to the AOJ to obtain records from four physicians in private practice previously identified by the Veteran and to obtain a retrospective medical opinion concerning the Veteran’s ability to work prior to February 11, 2004. As the Board explained in the most recent remand, issued in June 2020, the AOJ initially failed to respond appropriately to the Veteran’s records requests and the retrospective opinion concerning TDIU, dated April 2020, was clearly based on a misunderstanding of the opinion requested (the opinion focused on the Veteran’s ability to work just prior to 2014). Because of this error, the Board assigns no weight to the April 2020 opinion and will not discuss it further. To ensure compliance with its earlier orders, see Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board remanded the case with instructions to make new records requests to the medical providers and to obtain a new retrospective opinion on how the Veteran’s disabilities affected his ability to work before February 11, 2004. After the AOJ provided him with the appropriate forms, the Veteran submitted a signed authorization for six identified health care providers to release records to the VA. The authorization identified two of them as deceased, but suggested that the records of one of the deceased might be available through the office of Dr. D.G. Except for the two deceased providers, the AOJ obtained copies of records from all the persons identified in the post-remand authorization. In August 2020, the AOJ obtained three retrospective opinions on the question of TDIU prior to February 11, 2004 from an audiologist, a medical doctor, and an optometrist. The audiologist and optometrist commented on the effects of the Veteran’s hearing loss and diabetic retinopathy, respectively, while the medical doctor discussed the Veteran’s musculoskeletal disabilities and the effect of service-connected disabilities more generally. The audiologist wrote that the Veteran had “a severe to profound hearing loss in both ears, as well as poor word recognition. However, there are occupations that may allow [him] to rely on written communication, rather than verbal communication.” The audiologist also noted that, pursuant to VA regulations, the Veteran’s hearing test results did not permit the use of hearing aids, which “may greatly benefit the Veteran.” According to the optometrist, the “eye condition would impact his ability to work, work tasks that involved depth perception would be impaired and work tasks that involved fine detail would be impaired. [The Veteran] communicated that he experienced vision problems towards the end of his employment with the US Postal service. I agree with this assessment.” The physician wrote that it was reasonable to assume that the Veteran was experiencing diabetic retinopathy prior to 2004 and also commented on the vocational consultant’s report. According to the physician the Veteran had degenerative disease of the lumbar spine, a non-service-connected disability, which might also explain some of the symptoms previously attributed to diabetic neuropathy. The physician also wrote that, “Diabetic neuropathy is a gradually progressed condition, unlikely resulting in severe disability until a later stage.” Analysis Before proceeding to the merits of the claim, the Board must address whether the AOJ complied with the June 2020 remand instructions. In an August 2020 letter, the Veteran complained about the VA’s failure to obtain certain records. He acknowledged that “all of [a former treating podiatrist]’s records have been received.” But he wrote that, “The VA still do not have my entire medical file from [three surviving health care providers identified in the post-remand authorization]. [The other two providers] are both now deceased and those records cannot be obtained.” Nevertheless, the Board finds that the AOJ substantially complied with its duty to assist the Veteran and with the prior remand orders. To some extent the Veteran’s complaints seem to be based on a misunderstanding. His letter describes records he received “on the disc”, referring to a response to an earlier request he made for a copy of his claims file. A copy of the letter responding to his request indicates that the file was copied in December 2019. Because the AOJ did not obtain the records in response to the most recent request until July 2020, those records would not have been visible to the Veteran when he reviewed the disc. It is true that the most recently obtained records do not include much, if any, evidence concerning the period on or before February 2004. But the AOJ appears to have mailed copies of the signed authorizations, which includes date ranges beginning in the early 2000s for all but one of the providers (the other is a podiatrist who appears not to have treated the Veteran until many years after February 2004). If the oldest records from the other three providers are no longer stored with their original custodians, there is no information from any source indicating where else they might be found. Moreover, earlier in the proceedings, the AOJ obtained copies of much older records from the three physicians, including records from Dr. D.G., the physician mainly responsible for treating his diabetes, from as early as June 2003 and who apparently told the Veteran, at least according to the consultant’s report, that he should stop working. Under these circumstances, it seems that, in his letter, the Veteran exaggerates the degree to which the AOJ has failed to obtain relevant evidence concerning this issue. As for the question of TDIU prior to February 11, 2004, the decision in Delrio is highly significant to the Board's analysis because February 11, 2004 is the effective date for the Veteran’s award of compensation for diabetic retinopathy of the eyes. And January 5, 2010 is the effective date for the award of compensation for peripheral neuropathy of both the upper and lower extremities. The Veteran did not appeal the effective date the AOJ assigned to his eye disability in April 2014. Likewise, he did not appeal the August 2010 decision assigning January 2010 as the effective date for his service-connected peripheral neuropathy. Based on the convincing statements of the August 2016 vocational consultant and the post-remand opinions of the VA examiners, the Veteran’s disabilities of the eyes and the pain, numbness, and unsteadiness in his hands, legs, and feet would likely make it difficult for a person to secure and follow substantially gainful employment. But Delrio prevents the Board from finding that the Veteran was unemployable prior to February 11, 2004 based on his limited vision, or his neurological impairments of his hands, arms, legs, or feet. When explaining why she believed that the Veteran was unable to perform a sedentary job, the August 2016 vocational consultant heavily emphasized his limited vision and peripheral neuropathy. She wrote that, “service-connected diabetes mellitus and secondary conditions have rendered him unemployable since 2002 and up to the present time.” The Veteran’s diabetes mellitus, type II is a service-connected disability for the purposes of this appeal (with an effective date of June 12, 2001). But in the absence of the vision and peripheral nerve complications, his diabetes itself could be well-controlled by medication and diet. In June 2004, Dr. D.G. wrote that the Veteran, was “walking 7-8 miles a day, occasionally he is getting a feeling of hypoglycemia but generally his glucoses have been terrific.” Unlike the eye disorders or peripheral neuropathy, diabetes itself did not prevent him from performing the physical and mental acts required by his most recent employment. The Veteran’s hearing loss was also a service-connected disability at the relevant time. In his August 2020 letter, he argues that, based on a set of hearing test results obtained when he was either working for, or in the process of arranging employment with, the Ford Motor Company in 1973, the Board should award an extraschedular TDIU rating based on hearing loss with an effective date of 1977. The Veteran suggests that a date of 1977 would be appropriate because, in August of that year, the Director of a Law School Legal Clinic, acting on his behalf, mailed the test results to the VA Regional Office in New Jersey, with a cover letter describing him as “precluded from employment due to his hearing problem.” The Board disagrees with this argument. It is true that the 1973 test results indicate severe bilateral hearing loss. But in 1977, according to the Veteran’s written application for a TDIU rating, he began his successful career with the Post Office which continued for decades, until he was eligible to retire. The sequence of his work history undermines the suggestion that the Veteran is unemployable based on his hearing loss alone. In summary, it is quite likely that the Veteran may have become unemployable prior to February 11, 2004 as a result of some of the disabilities for which service-connected compensation was not awarded until after that date – particularly diabetic retinopathy and peripheral neuropathy. But the Court's decision in Delrio prevents the Board from considering those disabilities during the period before February 11, 2004. During the relevant period, the preponderance of the evidence is against a finding that service-connected disabilities prevented him from securing and following gainful employment. The Board will therefore deny the claim for an effective date for TDIU earlier than February 11, 2004. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.